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McLaughlin & Stern Has Great Success Representing Widow of Deceased New York State Trooper

Sun 4 January 2015 News Releases

By Carl Campanile and Susan Edelman | New York Post

After State Police narcotics investigator Richard O’Brien fell off a ladder while repairing his mother’s roof, he lived for only three hours.

As the mortally injured cop lay unconscious in the hospital, fellow troopers scrambled to “retire” him on disability, and name his wife his beneficiary, so she could get more money if he died.

Because of faulty fax machines, the paperwork did not arrive at its destination until seven minutes after O’Brien’s death. The retirement was denied, but his wife was offered a one-time $342,000 death benefit.

Stephanie O’Brien, 16 weeks pregnant with their first child, sued unsuccessfully to get the lifelong pension, calling the outcome unfair. She lost.

But Albany came to the rescue. Last month, Gov. Cuomo quietly signed a law — written to solely address O’Brien’s case — deeming O’Brien’s deathbed retirement was “timely.”

“This was an extraordinary situation, where the family of a decorated member of the New York State Police was denied benefits due to bureaucracy and circumstances outside of their control,” a Cuomo spokesman said.

“Simply put, signing this bill righted a wrong.”

Critics suggested that O’Brien’s trooper pals were gaming the system and that state taxpayers would foot the bill. A government watchdog called their actions “understandable but unseemly.”

“Retirement is a planned event, not a technical act made on someone’s behalf while dying,” Dick Dadey, executive director of Citizen Action, said at the time.

It’s the first known case of an officer filing for a disability retirement on the day of his death.

Married just five months, O’Brien, 42, tumbled 20 to 30 feet off a ladder at his mother’s house in Walden about 3:30 p.m. on Dec. 7, 2009.

He had served 12 years in the State Police, as well as two tours of duty with the National Guard in Iraq and Afghanistan.

Troopers who joined the State Police before 1997 can collect an “ordinary disability pension” if they become mentally or physically disabled while off duty. The pension cannot exceed 30 percent of the average of their final three years’ pay, rules state.

O’Brien, who joined the force in 1996, earned about $114,000.

It took 10 tries on two faulty hospital fax machines to send the retirement forms, an 18-minute ordeal. A State Police supervisor in Albany quickly reviewed and formally filed the forms at 6:31 p.m. But O’Brien had died at 6:24 p.m., so he technically could not retire, officials said.

His widow, a special-ed teacher who gave birth to Abigail six months after her husband died, appealed in court. A panel of judges voted 3-1 last April to uphold the decision.

But state lawmakers sprang into action on Stephanie’s behalf. State Sens. David Carlucci (D-Rockland-Westchester) and Patrick Gallivan (R-Buffalo) co-sponsored the specially tailored bill.

The bill, which passed unanimously last June, states O’Brien’s disability retirement application “was being processed, but not technically complete, at the time of his death,” and thus “timely.”

It grants the “ordinary disability pension.” Based on an estimate of $38,000 a year, Stephanie, now 37, can collect more than $1.5 million if she lives another 40 years.

“We are very grateful to the state legislature and the governor,” said lawyer Alan Sash, whose firm, McLaughlin & Stern, took the case pro bono. “This trooper put his life on the line every day. He was entitled to the maximum benefit, and his family should get it.”